The online journal of a crusty, longwinded trial lawyer, bemused observer of politics, and internet dilettante

Friday, September 26, 2003

Affirmative action as the "checker-shadow illusion" of racism

I really like the guys who write Burnt Orange Report because they're smart and articulate and passionate. They're also reflexively liberal, but that's easy to understand and forgive since they're college students at my alma mater, UT-Austin a/k/a Sodom on the Colorado.

I've been pondering Byron L's post expressing his outrage at the bake sale run by a campus conseravtive group at SMU that charged white males $1 per cookie, while females only $0.75, hispanics $0.50, and blacks $0.25. Bryon's conclusion, in a word: "Racists."

And what this in turn brought to mind is Edward H. Alderson's wonderful "Checker-Shadow" optical illusion — I'm posting a thumbnail here, but please click the thumbnail to see it full-size to get the full benefit of it.

Block A and Block B are identical. But how you perceive them depends entirely on context, and unless you work very hard at freeing your mind from the handcuffs of context, you will see them as being different from one another.

Racism and "affirmative action" — as that latter phrase is now used{note1} — are Block A and Block B. You can be fooled by context into thinking they're not, and once thoroughly fooled, you certainly can honestly believe and righteously argue that they're different.

But. They're. Not.

And when you start making important, life-altering decisions based on the premise that Block A and Block B are different, or that racism and affirmative action are different, you're likely to go astray. It may be entirely innocent and for the best of motivations. But the choices you make that are based on that premise are likely to be morally flawed.

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{note1}IIRC, as originally used, "affirmative action" began as a label for the equitable relief ordered by courts as a means of remedying incidents of proven past discrimination that could be pegged to individual plaintiffs, individual defendants, and individual scenarios. Herman Sweatt, for instance, was refused admittance to Texas Law School in 1946 solely because he was black. The US Supreme Court ruling that required Texas Law School to admit him was "affirmative action," but he was the personal, individual target of proven past racism on the part of Texas Law School.

I am just old enough that one of my law school professors in 1977-1978, the late Jerre Williams (later a judge on the Fifth Circuit), was one of the Texas Law School professors who'd been ordered to split his time between Townes Hall on the UT campus and a downtown Austin location in order to teach Herman Sweatt and a few other blacks at the newly established "law school for Negroes" in the late 1940s. Professor Williams' opinion was that because of the student-faculty ratio, students at the new school quite arguably got a better than equal education to that they'd have received at Texas Law School, but of course, there was no comparison between the prestige that would attach to their degrees regardless of who taught them and what they'd learned. Indeed, that was the basis for the US Supreme Court's decision that there was no way that "separate" could be "equal" as a practical matter:

In terms of number of the faculty, variety of courses and opportunity for specialization, size of the student body, scope of the library, availability of law review and similar activities, the University of Texas Law School is superior. What is more important, the University of Texas Law School possesses to a far greater degree those qualities which are incapable of objective measurement but which make for greatness in a law school. Such qualities, to name but a few, include reputation of the faculty, experience of the administration, position and influence of the alumni, standing in the community, traditions and prestige. It is difficult to believe that one who had a free choice between these law schools would consider the question close.

And this decision was of course the last small step before the great leap, the conclusion that there was no way "separate" could be "equal" as a conceptual matter either — hence Brown v. Board of Education and the modern-day civil rights movement.

Fast-forward fifty-three years — a full half-century, and nearly three generations. In this past year's Grutter v. Bollinger affirmative action case from Michigan Law School, by contrast, the "affirmative action" being upheld benefited individuals who are conclusively presumed by virtue of their race to need and deserve extra help from an institution with no history of racist discrimination against them or anyone else of their race. The black graduate of Harvard College whose parents are PhD's with earnings in the top one percent of Americans is given automatic and very possibly conclusive preference that is denied to, for example, the daughter of Vietnamese refuges whose University of Houston night-school diploma was earned while working three part-time jobs. I have no objection to genuinely remedial "affirmative action" as ordered in Sweatt v. Painter, but cannot justify "affirmative action" as practiced at Michigan Law School and approved in Grutter as being anything but racism.

Comments

Nice post. Good analogy. However, that optical illusion is a little misleading. The A square really is just slightly darker than the B square. The degree of difference is nowhere near as great as the eye thinks, but it's still there.

To verify this, I printed out the larger version of the illusion, and cut out identical smaller squares from each, labeling them "A" and "B" respectively on the back. The squares were indistiguishable in shape. However, my wife and I could consistently pick out "A" as the (very slightly) darker square.

I fear that this post will be less than coherent, since I have been sick lately. I beg your pardon in advance, and can only hope that you read this in as good a will as I write it in.
Your reference to Grutter v. Bollinger is flawed by the fact that you are talking about individuals, while the lawsuit is against an institution. Your objection to affirmative action, that qualified individuals are denied access to institutions by a rule that arbitrarily favors less qualified candidates, is also flawed.
You assume that in the admissions process, or bid process, that conditions between each paper application are completely equal, or would be if not for the box where you check your ethnicity. I wish this were so, but it is not. To use my own case as an example, you would never say that a middle class, highly (overly?) educated woman had ever faced many obstacles. And while my life has been easier than most, I still live in a world where people tell me to not expect to excel. My highschool guidance counselor, for instance, told me, a quiet, studious young girl, that I should not expect to get into college. I was fortunate that I did not believe her, but my cousins all went to that same school, and they did. Many of them now struggle in low-paying jobs, trying to make it through at the local community college. It doesn't take many people to tell you that you are bound to fail before you give up.
Okay, the point of that long narrative is to say that non-white kids, no matter what their background (and you couldn't get more bougie than mine) come to any admissions process with this crazy, defeatist baggage. Often, the litany of "you can't you won't" damages academic records. To get away from this, people will simply do things outside of school (football, a job) to get away from this often unspoken judgment.
Admissions committees have to recognize that kids of color simply experience the American school system differently from white kids.
Which gets back to my first point, about the lawsuit. Yes, admissions committees have to acknowledge this difference, because it is in their best interest to do so. This is the University of Michigan's defense in Grutter v. Bollinger, and it was reiterated by corporate America and the U.S. Service Academies in the friend of the court briefs. Public institutions have an interest in reflecting the public, because it helps them to serve that public.
Thanks for tolerating my rambling-- kuku

This is obviously not the issue I wanted to debate, but ... When I use the eyedropper function to peg the color of the two squares in question with either of two image manipulation programs (LView Pro and ArcSoft Photo Studio), they both report exactly the same thing: R-107, G-107, B-107 on each block. I claim no expertise in optics, nor in how computer monitors and printers and browsers handle such things, but this certainly seems to me to support Prof. Alderson's claim fairly objectively and conclusively, and makes me wonder if there's some other technical explanation for my reader/viewers' reports. Perhaps Professor Alderson — whose webpage describes him as a "Professor of Vision Science" in the "Department of Brain and Cognitive Sciences and Artificial Intelligence Lab" at MIT — could address these questions if anyone wants to contact him directly. In any event, the original of the .jpg that I've snatched (fair use I hope! copyright is certainly his) appears here. (There are several other neat illusions there too, by the way, but this one is my favorite.)

kuku, your "rambling" is welcome, not just tolerated, and as I hope my own post suggested (in particular the reference to the hypothetical daughter of Vietnamese refugees), I agree that one's merit can and should be measured in many, many ways besides on an LSAT x GPA matrix. If Michigan Law School erased from its application form the race/ethnicity check-boxes and actually looked at those "indicia of diversity" to show ... umm, diversity (in anything other than race), I'd applaud their efforts.

But our nation fought a civil war (in which my beloved home state was on the losing side, and ought to have lost!) over the question of whether the government — federal and state, in all its various incarnations including universities that take federal money — can properly measure individual merit on the basis of race. The answer, as written very explicitly into both our Constitution and our statutes, is "No! Nuh-uh! Never! Thou shalt not. Fuhgeddabowdit!"

And yet at Michigan Law School today — with the blessing of the Supreme Court for (very oddly only) another 24.5 years — someone keeps track of how many of the people they've accepted have that ethnicity box next to "Black" checked. They keep bumping the still-pending applications with that box checked up to the top until they've got the quota-in-all-but-name that they want, regardless of all the other factors, objective and subjective. That is racial discrimination, as Grutter admits but then excuses on the basis of the argument that "diversity" is a "compelling state interest." (The holes in that particular argument are also screamingly obvious.)

Some day — a day that I hope comes sooner than Justice O'Connor's arbitrary twenty-five years-hence target — I hope we'll be a genuine nation of mongrels, where the only answer to the question "What race are you?" is "Human. I'm part of the human race, just like you." Affirmative action delays that day, and it ends up stigmatizing and ostracizing and penalizing the very people it's intended to help.

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